This requires the "vouchers" of the marshals to be made in duplicate. The question therefore arises whether, in this case, a "voucher" is merely a statement of a claim and a receipt acknowledging its payment by the marshal, or whether it includes this and the affidavit required by the instructions of the Attorney-General. Bouvier defines the word, voucher, to mean, "any acquittance or receipt, which is evidence of pay ment, or of the debtor's being discharged." In Whitwell & Others v. Willard (1 Metc., Mass., 218) a voucher is defined "any acquittance or receipt, discharging a person, or being evidence of payment." In The State v. Hickman (3 Halsted's N. J. Law. R., 299), a voucher is defined, "any instrument which attests, warrants, maintains, bears witness." (Consular-Accounts case, 3 Lawrence, Compt. Dec., 352; Consular-Draft case, ante, 88; Watkins v. United States, 9 Wall., 764).

The instructions of the Department of Justice as above given, require each deputy marshal to verify his claim for per diem compensation, by affidavit, and require the marshal to "attach it"-the claim so verifiedto his "account as a voucher." For the purpose of this case, then, a voucher is more than an acquittance-it includes a verified account and an acquittance.t

And generally, in Treasury Department practice, in those cases in which claims are by law, regulation, usage, or requirement of a Comp. troller, to be verified by the claimants, a voucher is a verified claim with an acquittance thereon. The duplicate vouchers, required by the act of

* Hickman was indicted, for that he did "feloniously steal, take and carry away one voucher of the value of fifty dollars, the property of Robert Lake," as follows: "Davis Wharf, April 18, 1825. Captain Robert Lake landed 224 cords of oak wood and cord of pine wood, all left for sale. To cash paid Robert Lake on account, $25.00. Samuel Davis."

The vouchers are in the following form:

UNITED STATES OF AMERICA,

Southern District of New York, 88:

Frederick Rotzler being duly sworn, deposes and says that he was duly appointed a special deputy marshal in pursuance of the provisions of section 2021 of the Revised Statutes of the United States, for the purpose of acting as such at and previous to the election held in the city of New York on the 8th day of November, 1881.

That at the time of said appointment he was a qualified voter of said city. That he was actually on and performed his duty as required by the provisions of title XXVI, "The Elective Franchise," of the said Revised Statutes, four days and that he is entitled to receive for his services, at the rate of five dollars per day the sum of twenty ($20) dollars.

FREDERICK ROTZLER.

Subscribed and sworn to before me, this 9th day of February, 1883.

W. R. SPOONER,
U. S. Com'r, So. Dist. N. Y.

I do hereby acknowledge the receipt of the sum of twenty ($20) dollars from Joel B. Erhardt, United States marshal for the southern district of New York, in full payment for services rendered as special deputy marshal, as stated in the foregoing affidavit. FREDERICK ROTZLER.

Dated New York, Feb'y 12, 1883.

February 22, 1875 (18 Stat., 333), as applied to the claims now under consideration, of deputy marshals in New York, must each include a verified claim and an acquittance.

III. Is a commissioner of a circuit court authorized to administer an oath to verify the account of a deputy marshal? No provision of the Revised Statutes nor any statute since enacted has given express authority to do so, nor is such authority incidental to any power expressly given by statute. Section 627 of the Revised Statutes declares that the commissioners "shall exercise the powers which are or may be expressly conferred by law." If a commissioner is not authorized to administer an oath, the formality of doing so is a nullity. An indictment for perjury cannot be sustained unless on an oath administered by some one duly authorized to administer it. (United States v. Deming, 4 McLean, 3.) If no statute gives to commissioners authority generally to administer oaths, yet the Attorney-General has ample authority by regulation to authorize them to administer oaths to persons and to attach jurats to vouchers (Rev. Stat., 161, 362, 368; United States v. Babcock 4 McLean, 113. Utah case, 2 Lawrence, Compt. Dec., 2d ed., 563). Thus in United States v. Bailey (9 Pet., 255) the question was presented, whether under the act of March 1, 1823 (3 Stat., 771, ch. 37, sec. 3), a conviction was lawful, for falsely swearing to a claim against the United States before a State justice of the peace who was not by any statute specifically authorized to administer such oath. The act of 1823 makes it a crime to "swear or affirm falsely in support of any claim

against the United States." Story, J., in deciding that the conviction. was authorized, said:

เ

There has been a constant practice and usage in the treasury department in claims against the United States, and especially of a nature like the present, to require evidence by affidavits in support of the claim, whether the same has been expressly required by statute or not; and that, occasionally, general regulations have been adopted in the treasury department for this purpose. Congress must be presumed to have legislated under this known state of the laws and usage of the treasury department. The very circumstance, that the treasury department had, for a long period, required solemn verifications of claims against the United States, under oath, as an appropriate means to secure the government against frauds, without objection, is decisive to show that it was not deemed a usurpation of authority.

"The language of the act of 1823 should, then, be construed with reference to this usage. The false swearing and false affirmation, referred to in the act, ought to be construed to include all cases of swearing and affirmation required by the practice of the department in regard to the expenditure of public money, or in support of any claims against the United States. The language of the act is sufficiently broad to include all such cases; and we can perceive no reason for excepting them from the words, as they are within the policy of the act, and the mischief to be remedied." (See United States v. Winchester, 2 McLean, 135; O'Mealy v. Newell, 8 East, 364.)

This places the authority of a State justice of the peace to administer an oath upon a usage recognized by the Treasury Department,

which became a part of the act of 1823 as fully as though incorporated therein. (Murdock's Appeal, ante, 314; Burgess's case, ante, 342.) On principle, a universal long continued usage of the Treasury Department is national executive common law equivalent to and having the force of a regulation prescribed by the Secretary. (3 Lawrence, Compt. Dec., Introd., XXII.) In the opinion referred to, Justice Story shows that the Secretary of the Treasury had power, by express regulation having the force of law, to authorize a State justice of the peace to administer oaths to claimants. He says:

"It is a general principle of law, in the construction of all powers of this sort, that where the end is required, the appropriate means are given. It is the duty of the Secretary to adjust and settle these claims, and in order to do so he must have authority to require suitable vouchers and evidence of the facts, which are to establish the claim. No one can well doubt the propriety of requiring the facts, which are to support a claim, and rest on testimony, to be established under the sanction of an oath; and especially in cases of the nature of those, which are referred to in the act, where the facts are so remote in point of time, and must be so various in point of force and bearing. It can not be presumed that Congress were insensible of these considerations, or intended to deprive the Secretary of the Treasury of the fullest use of the best means to accomplish the end, viz., to suppress frauds, and to ascertain, and allow just claims." (U. S. v. Bailey, 9 Pet., 253.)

This process of reasoning gives to the Secretary of the Treasury and to the Attorney-General authority, by regulation, to authorize a circuit court commissioner to administer oaths in support of claims against the United States. But no such regulation has been prescribed. The usage of the Treasury Department, to receive affidavits sworn to by commissioners in support of claims against the United States, has been so long continued that it has become national executive common law, if such usage can become so. Section 627 of the Revised Statutes declares that the commissioners "shall exercise the powers which are or may be expressly conferred by law upon commissioners

" It may be

that this expression, "expressly conferred by law," would generally mean, conferred by act of Congress, though an authorized regulation of the head of a Department has the force of law. This expression is not found in any act of Congress, until incorporated in the Revised Statutes. There are numerous sections of the Revised Statutes defining the powers and prescribing the duties of commissioners. Revised Statutes, 627, 628, 727, 728, 945, 1014, 1042, 1778, 1878, 1982-1987, 3479, 4079-4081, 5270, 5271, 5296, and the act of June 23, 1874 (18 Stat., 255, sec. 6.) See and compare 1778 with 1878, 2181. These sections have been taken from many statutes passed at different times. Generally, such sections of the Revised Statutes would be construed in pari materia, as parts of one act. On this theory, full effect would be given to all the words of section 627. But it is now well settled that, in construing the Revised Statutes, when their meaning is not plain, reference may be had to the original statutes from which they were taken. (United States

e. Bowen, 100 U. S., 513; Arthur v. Dodge, 101 U. S., 36; Meyer v. Car Co., 102 U. S., 11.) And, as no statute, prior to the revision, declared that commissioners should only exercise the powers "expressly conferred by law," and as this expression is only found in section 627, in which it is an interpolation not warranted by any previous statute, it is regarded as only meaning that commissioners shall exercise such powers as may be authorized by statute. And the powers expressly authorized by statute carry with them other powers not expressly authorized-implied or incidental powers-being those necessary and proper as means of carrying into effect powers expressly given. It is evident that nearly every one of the separate acts of Congress has been passed on the theory that powers expressly given carried with them other and incidental powers. An examination of the acts will show that without such implied powers it would be utterly impossible for commissioners to exercise the jurisdiction expressly given them by statute. The commissioners can therefore exercise such incidental or implied powers as are necessary means appropriate to the exercise of their jurisdiction expressly given. And, upon the authority of United States v. Bailey (9 Pet., 254), they may exercise such powers as may be conferred upon them by authorized regulations of the head of an executive department, or Comptroller, or by usage equivalent to a regulation and having the force of law. The usage of recognizing the validity of oaths administered by commissioners, and of affidavits taken before them in support of claims against the United States, has been so long continued that it is national executive common law, known to and recognized by Congress by appropriations and otherwise, and so is subject to the sanction of penal legislation. A construction which would now nullify this usage would be productive of ruinous consequences. Circuit court commissioners are, by force of national executive common law, authorized to administer oaths and certify affidavits in support of claims against the United States. Even if commissioners can only exercise such powers as are "expressly conferred by law" [statute] they can administer such oaths. The Revised Statutes provide:

"SEC. 1778. In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any State or Territory, or in the District of Columbia, they may hereafter be also taken or made by or before any notary public duly appointed in any State, district, or Territory, or any of the commissioners of the circuit courts, and, when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace."

No act of Congress gives a justice of the peace of a State authority to administer oaths in support or claims against the United States. But such justice bas, at common law, ex virtute officii, authority to adminis ter oaths generally. This authority pertains to the judicial office. And in our duplex system of government, this authority of a State justice

extends to oaths administered for purposes of the national government. This is settled national executive common law. It is a part of our interState law. Or, it may be said with more accuracy, that it is a part of that system treated of under the title of the "Conflict of Laws," and especially that portion of it which pertains to the relations between the national government and the States. (United States v. Bailey, 9 Pet., 249, 255; Bishop Crim. Law, 3 Ed., 987; United States r. Winchester, 2 McLean, 135; Orr v. Lacy, 4 McLean, 243; Rump v. Commonwealth, 30 Pa. St., 475; People v. Sweetman, 3 Parker 358; Walch v. Dart, 12 Wis., 635; Rorer on Inter-State Law, 119; Wharton, Conflict Laws, secs. 699, 700, 759; McAfee v Doremus et al., 5 How., 53; Bank of Rochester v. Gray, 2 Hill, N. Y., 227; Ray v. Porter, 42 Ala., 327.) And the effect of section 1778 of the Revised Statutes is that if justices of the peace in any Territory or in the District of Columbia may administer oaths generally, every commissioner wherever located shall have the same power.

The Revised Statutes relating to justices of the peace in the District of Columbia provide that

"They shall have all the powers vested in, and perform all the duties required of, justices of the peace, as individual magistrates, by the laws in force within the District." (Rev. Stat., Dist. Col., sec. 995.)

The "laws in force within the District" give justices authority to administer oaths generally. This is a part of their common law powers, and the Maryland statute of November, 1796, prescribes the fee therefor. (2 Kilty's Laws of Maryland, Ch. XLIII, sec. XXXI; act of 1801, Chap. 74; 1 Dorsey's Laws, Part 2, pp. 461, 463, secs. 30-32.) The right to charge fees therefor is recognized by the act of Congress, July 16, 1790 (1 Stat., 130), and the act of Feb. 27, 1801 (2 Stat., 107, section 14). And, under territorial statutes, justices of the peace in the Territories are generally invested with authority to administer oaths. (Rev. Stat., 1856, 1857, 1878, 1907, 1926, 1927, 2181.)

The act of August 15, 1876 (19 Stat., 206, chap. 304), provides that:"Notaries public of the several States, Territories, and the District of Columbia be, and they are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioners of the United States circuit court may now lawfully take or do."

Here express authority is given to notaries public to "take acknowledgments and affidavits in the same manner and with the same effect as commissioners * may now take or do."

It is evident that Congress supposed that commissioners could take affidavits at least in the cases sanctioned by the usages stated. This act is a distinct recognition of such authority. And, on the principle decided in Bliss's case, ante, 38, this is equivalent to a legislative grant of the power. In addition to this, Congress may be supposed to have legislated in view of the universal usage which recognized the authority